more.

Defendant's vice president and traffic manager, who entered its employ October 7, 1943, was the only witness testifying in its behalf. Defendant now maintains terminals at Charlotte, High Point, Winston-Salem, Greensboro, and Raleigh, N. C., and Richmond and BaltiIt operates 27 trucks and 14 tractor-trailer units, all of which are utilized to full capacity. The service demands on it would require additional units if they were obtainable. Its witness asserts that some shipments have been delivered by it at Statesville, Mooresville, Lincolnton, Hickory, Lenoir, and Marion, all points on route 1, between Salisbury and Marion. No date is given, and they may represent the final service performed in June or July 1942, as the witness has not received any calls for out-bound service from any intermediate or offroute points on the route since that time. He asserts that defendant now is performing service in this region to the extent that it is able to do so with the equipment that is available. Defendant has not canceled its participation in rates to or from the points where its service has alledgely been abandoned. Service is said to have been performed on the other routes, but very few details are given. The witness frequently has found it necessary to decline service requested at different points because of shortage of equipment. Less-than-truckload shipments are transferred whenever desirable, even on the routes that defendant is authorized to service direct. It is conceded that no calls for service at such points as South Boston, Clarksville, La Crosse, Lawrenceville, Occoquan, Annapolis, and Cockeysville have been received, although some of these places are on defendant's main route 2, between Charlotte and Baltimore.

Defendant's certificate, revocation of which is requested by complainant, contains a condition requiring the holder to render reasonably continuous and adequate service to the public in pursuance of the authority granted and provides that failure so to do shall constitute sufficient grounds for suspension, change, or revocation of the certificate. With respect to route 1, between Salisbury and Marion, the record discloses that defendant closed its terminals, removed its office furniture and telephones, discharged its agents, removed its pick-up trucks, announced to the public the discontinuance of service in that region, and referred shippers to other carriers that operate over the same route. Obviously, defendant had insufficient equipment to participate in the heavy war traffic of other parts of the State and at the same time to continue to render reasonably continuous and adequate service over this route. It is insufficient to continue the publication of rates and to hold out to the public as a motor carrier to the best of one's ability with the available equipment without the accompaniment of actual operation to such extent as to constitute a bona fide

continuous and adequate service. Defendant was advised at that time that such procedure would amount to abandonment of the service, and acted in the light of that knowledge. It failed to introduce any shipping documents as evidence of the performance of reasonably continuous and adequate service.

In the light of the facts of record, it is clear that reasonably continuous and adequate service has not been rendered to the public over route 1 between Salisbury and Marion and to the intermediate and off-route points as authorized and required by defendant's certificate. Such a failure to render service cannot be viewed as other than willful, and under section 212 (a) of the act is ground for revocation unless compliance is had within such reasonable time, not less than 30 days, as we may fix. Smith Bros. Revocation of Certificate, 22 M. C. C. 524. With respect to the lack of service to certain points off route 2, between Charlotte and Baltimore and off route 3, between Greensboro and Richmond, and at two intermediate points on the latter route, the evidence indicates that some of these points never have been served, that others have been served very infrequently, and that the remainder have been served on call, especially in the case of sizable shipments. It may be that, in consequence of diminishing traffic solicitation, requests for service by defendant at various points have decreased over the last few years. In the absence of any complaints by shippers or of other more conclusive evidence, a finding cannot be made here that defendant actually has failed to render reasonably continuous and adequate service at any of these intermediate or off-route points so long as it continues such service over the prescribed routes. Ordinarily, calls for service at off-route points occur irregularly or infrequently, and the question of adequacy of service at such points is somewhat different from that applicable at points on the regular route, especially when prompt movement of smaller shipments may be performed by interchange with other carriers.

Substantially the same comments may be made regarding the service over irregular routes between Baltimore and points in Gaston, Cleveland, and Rutherford Counties. Apparently, by a combination of direct collection and delivery of sizable shipments and prompt handling of smaller shipments by interchange with other carriers, defendant has been able to avoid any complaints of inadequate service by shippers. In the absence of complaints by shippers or of other more conclusive evidence than that adduced here by complainant, we are unable to find that the defendant has failed to render reasonably continuous and adequate service over the irregular routes.

We find that defendant has willfully failed to render reasonably adequate and continuous service to the public pursuant to its cer

tificate issued in No. MC-1380, at Marion and all intermediate points on its regular route between Salisbury and Marion, N. C., and reasonably adequate and continuous service at all authorized off-route points along said route. An order will be entered requiring the defendant, within a reasonable time, specified in the order, to institute reasonably continuous and adequate service to the public as authorized and required by its certificate, failing which, its certificate, to the extent it authorizes performance of the above-described service, will be revoked. This proceeding will be held open, and defendant will be required to inform us by affidavit, upon expiration of the specified period, whether it has complied with the requirement. A copy of such affidavit shall, when filed with the Commission, be served upon all parties of record and may be replied to within 10 days after such service. Thereafter we shall enter such further order or orders as then appear to be appropriate.

COMMISSIONER LEE dissents.

43 M. C. C.

No. MC-7213 (SUB-No. 2)

LESTER C. NEWTON EXTENSION OF OPERATIONS

FROZEN FOODS

Submitted September 16, 1941. Decided October 20, 1944

Public convenience and necessity found to require operation by applicant, in interstate or foreign commerce, as a common carrier by motor vehicle, (1) of fresh frozen fruits and vegetables, and fresh frozen sea foods, (a) from Exmore, Va., and Bridgeville and Dover, Del., to specified points or areas in Massachusetts, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, and the District of Columbia, (b) between Vineland, N. J., and Exmore, Va., Bridgeville, and Dover, Del. ; and (2) of fresh frozen fruits and vegetables from Brockport, N. Y., to Exmore, Va., and Bridgeville, Del., over irregular routes. Issuance of a certificate approved upon compliance by applicant with certain conditions, and application in all other respects denied.

Everett B. Lackie for applicant.

W. T. Gardner, E. A. Harding, J. W. Cram, C. W. Daneker, W. Edgar Porter, and E. P. Miles for protestants.

REPORT OF THE COMMISSION

DIVISION 5, COMMISSIONERS LEE, ROGERS, AND PATTERSON

BY DIVISION 5:

Exceptions were filed by applicant to the order recommended by the examiner. Our conclusions differ from those recommended.

By application filed August 3, 1940, Lester C. Newton, of Bridgeville, Del., seeks a certificate of public convenience and necessity authorizing operation, in interstate or foreign commerce, as a common carrier by motor vehicle, of frozen agricultural commodities, and frozen sea foods, between points in Accomac and Northampton Counties, Va., the Eastern Shore of Maryland, Delaware, (all commonly called the Del-Mar-Va peninsula), Pennsylvania, New York, and New Jersey, on the one hand, and, on the other, points in Virginia, Maryland, Delaware, New York, New Jersey, Pennsylvania, Massachusetts, Rhode Island, Connecticut, North Carolina, South Carolina, Georgia, Florida, and the District of Columbia, over irregular routes. Rail carriers in trunk-line and New England terri

43 M. C. C.

tories, and various motor carriers and organizations thereof,1 oppose the application.

Applicant is engaged in both trucking and farming. In No. MC7213, he was granted a certificate under the "grandfather" clause of section 206 (a) of the Interstate Commerce Act authorizing him to operate as a common carrier by motor vehicle, between certain points in the territory here involved, in the transportation of numerous special commodities, including insofar as pertinent here, agricultural commodities. He is fit, willing, and able, financially and otherwise, to conduct the proposed operation.

It should be carefully noted that this application is for authority to transport, among other things, fresh frozen foods, as distinguished from foods merely under normal refrigeration. This distinction is important because all motor carriers under regulation have the right to protect their perishable commodities by use of ice. Applicant, although possessing authority to transport agricultural commodities between certain points within the territory here involved, and also the equipment to move them in a frozen state, questions whether he has authority to transport fresh frozen foods as a common carrier. One issue therefore presented is whether applicant's proposed service in the transportation of fresh frozen agricultural commodities and seafoods comes within the certificate or permit requirements of the Interstate Commerce Act.

Section 203 (b) (6) of part II of the act provides in substance that nothing in this part, except the provisions of section 204 relative to qualifications and maximum hours of service of employees and safety of operations or standards of equipment, shall be construed to include motor vehicles used exclusively in carrying fish (including shell fish), and agricultural commodities (not including manufactured products thereof).

Fresh frozen fruits and vegetables, as described in this record, are of relatively recent appearance on the market. The fresh agricultural commodities from which they are prepared are brought directly from the farm, or producer, in their natural unprocessed state, to the nearest freezing plant. They are frozen either in an ice manufacturing plant under contract or in the special plant of a company in this new industry. Here the raw produce is variously sorted, graded, washed, sliced, compressed, frozen, packed, and packaged in paraffin cartons, depending on the particular fruit or vegetable and the particular refinements of the processing company. This process retains

1 Victor Lynn Lines, Inc., Horlacher Delivery Service, Inc., Henry H. Hulliger, E. P. Miles, doing business as Flying Cloud Express, Joint Northeastern Motor Carrier Associa tion Highway Transport Association, and Interstate Common Carrier Council.